Big Brother Watch has urged the Information Commissioner to investigate demands for the mobile phone data and personal records of sexual assault victims.

The civil liberties campaign organisation is also calling for the Information Commissioner to investigate the police’s use of ‘consent’ statements that allow unrestricted access to victims’ personal information. The ‘consent’ statements entitle police to access victims’ mobile phones, medical records, counselling notes, school records and social media accounts.

When asking for victims’ consent to access their data, police explain that “limiting the information police download could have an adverse bearing” on their case and that cases are unlikely to proceed unless they give blanket consent to their data.1

Police, under pressure from the Crowd Prosecution Service (CPS), routinely request sexual offence victims’ phones to take a full copy of the contents spanning text messages, emails, call logs, photos, web browsing data, audio recordings, videos, apps, contacts, documents social media accounts and previously deleted data – all of which can be kept for 100 years. It is estimated that the average smartphone contains data equivalent to around 30,000 A4 pages, the examination of which can add up to 18 months to a rape investigation.

The practice has been blamed for significant backlogs in police investigations of sexual offences and delays in criminal proceedings. The Metropolitan Police and a dozen other forces have begun using artificial intelligence software to examine victims’ devices and “analyse links (…) to reveal hidden connections (…) and communications patterns.”2 Big Brother Watch described this use of commercial software as an “extremely concerning” move that could mean “less transparency and even more disproportionate intrusions of privacy”.

Information gathered by police can be passed to the alleged attacker under disclosure rules during criminal proceedings, and can be used to discredit victims in court.

in 2016, Kent Police was fined £80,000 for handing the entire contents of a domestic abuse victim’s mobile phone to her partner’s lawyer, who passed it to the suspect. She had given the phone to police because it contained a single video supporting her accusation, but officers downloaded files including text messages and photographs.

Earlier this year, the Association of Police and Crime Commissioners (APCC) called for an inquiry, stating that “evidence on the ground suggests that even when officers are confident that they have pursued all reasonable lines of inquiry, they are often being told by the CPS to pursue all other available sources”.3

Sara Thornton, Chair of the National Police Chiefs’ Council (NPCC) also warned that current practice could deter people from reporting rape, “because they fear intrusion into their lives and private information that’s not relevant to the crime being shared in court”. Thornton described the use of such information against victims as “the digital equivalent of the tired trope of women in short skirts ‘asking for it’.”4

Silkie Carlo, director of Big Brother Watch, said:

“At a time when more women and men than ever are pursuing justice against sex offenders, the justice system is letting them down. Victims of any other type of crime are not asked to put their private lives on trial – reserving that approach for victims of sexual assaults is antiquated and wrong. These digital interrogations obstruct justice, deny victims their basic rights, and swamp police in masses of irrelevant data they cannot handle. We urge the ICO to investigate this issue as a matter of priority.”

Harriet Wistrich, founding director of the Centre for Women’s Justice

“The Centre for Women’s Justice share the concerns set out in Big Brother Watch’s submissions and intend to provide our own evidence to the ICO including examples of cases referred to us which illustrate the totally disproportionate and potentially unlawful accessing of personal data of those complaining of sexual offences.

“This approach will only reverse progress made in encouraging women to come forward to report rape and serves to re-enforce a culture of victim blaming and impunity for rapists.”